Charges of Whitewashing Cloud Mine Safety Investigations

Massey Energy and mine safety advocates don't agree on much these
days. But as government regulators begin their closed-door probe into
the cause of April's deadly blast at a Massey mine in southern West
Virginia, the two sides have united on one front: Both are questioning
the willingness of the Mine Safety and Health Administration to hold
itself responsible for potential mistakes leading up to the tragedy -
especially if the probe is not made public.

"How likely is MSHA to point the finger at itself if the
evidence gathered in confidential interviews suggests that its actions
contributed to the explosion?" Don Blankenship, Massey's pugnacious
CEO, asked Senate lawmakers during a mine safety hearing last month.

If history is any indication, it's not very likely.

Following a number of deadly mine disasters in the last decade,
MSHA's internal investigators came to the seemingly contradictory
conclusion that although the agency made significant mistakes, it was
also not to blame for those accidents. That trend, according to a
growing number of mine safety experts, is a disturbing one, not least
because the alleged whitewash in those cases relieves pressure on the
agency to reform itself.

"They always conclude that MSHA did nothing wrong, so they avoid
liability and nothing changes in the agency," said a former MSHA
manager who spoke anonymously due to the sensitivity of the topic.
"When the time came to do the internal reviews, [they] made sure that
MSHA was not blamed."

Tony Oppegard, a former MSHA lawyer who now represents the victims
of mining accidents, generally agreed, arguing that while the quality
of the internal reviews varies according to their authors, "there's an
inherent conflict because you have the agency investigating itself."

"There needs to be a truly independent group of people conducting
these investigations," Oppegard said.

All sides agree that the chief responsibility for miner safety lies
with the mine operator. But when the companies don't uphold their part
of the bargain, it becomes the task of regulators either to force the
companies to shape up or to shutter the mines altogether. A failure to
do so can have tragic consequences.

In January 2006, the Sago Mine explosion in West Virginia killed 12
miners and injured a 13th. Under the Bush administration, MSHA had
adopted a policy of "compliance
assistance," under which inspectors were encouraged simply to point
out safety hazards and help mine operators comply with the rules,
rather than punishing safety violations with fines and other penalties.
Although MSHA's internal review found a "failure of personnel to
follow established inspection procedures," as well as a failure to
correct known weaknesses in enforcing the rules, the authors also made
clear that MSHA should not bear any of the responsibility for the
tragedy.

"Although the internal review team identified deficiencies in MSHA's
actions at the Sago Mine, the team did not find any evidence that the
actions of District 3 personnel caused or contributed to the fatal
explosion," the
reviewers said.

A similar scenario unfolded following the May
2006 explosion at the Darby Mine No. 1 in Harlan County, Ky.,
which killed five miners and injured a sixth. While the subsequent
internal review noted "weak supervisory, managerial, and headquarters
oversight" and found that "MSHA did not address the potential for
significant problems with faulty seal construction," the authors
similarly concluded that MSHA should bear no blame.

"Although the internal review team identified significant
deficiencies in MSHA's actions at the Darby Mine, the team did not find
any evidence that these deficiencies caused or contributed to the
fatal explosion," the
report reads.

Indeed, rather than punishing the district manager overseeing the
Darby Mine, MSHA recently named
him the head of the team that will investigate the cause of April's
Upper Big Branch explosion, which killed 29 miners and almost killed a
30th - the deadliest mining accident in 40 years.

Last week, investigators entered the Upper Big Branch mine for the
first time since that blast. But MSHA - which hasn't staged a public
mine-safety hearing since the Carter administration - has so far
resisted all calls to hold one this time around. Opening its
investigation to the public would grant the agency subpoena power that
it won't otherwise have.

MSHA leaders have argued that voluntary testimony is simply more
reliable. "People should understand that private interviews are an
important part of our investigation," Solicitor of Labor Patricia Smith
said in a recent statement.

"It's a monumental mistake, what MSHA is doing," Oppegard said.
"It's doomed to fail." He suggested that MSHA force those witnesses to
"come in and plead the fifth."

Meanwhile, the former MSHA manager said that a failure by MSHA to
take a hard and honest look at its role in the UBB disaster would be a
missed opportuniy to correct some of the inherent weaknesses at the
agency, where higher-ups "get caught up in the minutiae" of data
collection without following up on what that information reveals.

"They've devised all these systems for collecting data and looking
at it," the source said, "but they haven't taken it to the next step:
using the data to make the mines safer."

Further

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